STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

Few people charged with DUI realize that they have statutory rights under Kentucky's implied consent laws, KRS 189A.103 and KRS 189A.105, which can protect them from inappropriate police procedure when the police are attempting to obtain evidence of their impairment.

The arresting police officer must comply with this statute or find himself violating the accused person's statutory rights. According to KRS 189A.105:

At the time a breath, blood, or urine test is requested, the person shall be informed:

1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver's license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and

2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.15 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.15; and

3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.

KRS 189A.103 states in part that the breath tests, "shall have been performed . . . only after a peace officer has had the person under personal observationat the location of the testfor a minimum of twenty (20) minutes."

Additionally, the police officer must also provide the accused person with the opportunity to contact an attorney. KRS 189A.105 further states:

During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right.

After the accused person has complied with the police officers requests, then KRS 189A.105 further states:

Immediately following the administration of the final test requested by the officer, the person shall again be informed of his right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested. He shall then be asked "Do you want such a test?" The officer shall make reasonable efforts to provide transportation to the tests.

If the officer failes to follow the procedures set forth under Kentucky's Implied Consent laws, then any results the officer thereafter obtains may be suppressed.

Person's who believe their Kentucky Implied Consent rights have been violated should contact a Kentucky DUI attorney.

In Kentucky,
Police stop vehicles for many reasons, not just for suspicion of DUI.
But if you had been drinking or under the influence of a drug, then
you need to do several things to increase your chance of being found
innocent.

First, call a
criminal defense attorney if possible. Some officers will cooperate
with you and allow you to speak with an attorney if you inform the
officer that you need to understand your rights.

Listen to the
instructions from the officer and do not be rowdy, disruptive,
aggressive or physical towards the officer. Do not give the officer
grounds to arrest you because of your behavior. Be polite and
respectful (they will appreciate the respect and may return the
favor).

Do
as little as possible and do not volunteer information. You will have
to provide your name and present your drivers license, registration
and proof of insurance. But you can stop there. Note that anything
you say before the officer places you in custody can and probably
will be used against you. According to the court in Miranda v
Arizona, you have the
right to ask for an attorney and remain silent when in police
custody. Miranda applies ONLY if the officer asks you
questions when in police custody. Note that not all traffic stops
rise to the level of being in police custody: in these cases, the
police may ask you questions without having to invoke your Miranda
rights and then can use your statements as evidence against you. If
the officer follows procedure, they will probably write down
everything you say for the prosecutor to use. Therefore, be safe and
invoke your right to remain silent: you do not have to answer
questions such as how much you had to drink or if you had been
smoking marijuana. You do not need to confess to the officer that you
believe you are intoxicated or impaired.

Furthermore,
the officer may demand that you take several “field sobriety”
tests if the officer suspects you of driving under the influence. The
officer intends to collect evidence against you using the field
sobriety tests. The field sobriety tests commonly administered in
Kentucky include the walk and turn test, the one leg stand, the
horizontal gauze Nystagmus test, and a portable breath test.
However, in Kentucky, these tests are voluntary: you can refuse to
take these tests. A word of caution: be polite and respectful to the
officer should you decide to refuse these tests.

In
Kentucky an officer can arrest you based solely on his opinion as to
whether you drove the vehicle under the influence. Should the officer
decide to arrest you, they will transport you to a detention
facility. There exists a good chance that the officer will record
your voice during transit. Be aware of this fact and do not answer
any questions in the police cruiser. You need to remain calm and
quiet even if you believe the officer wrongly arrested you.

Once
at the detention facility, the officer will again request that you
submit to a test of your blood, breath or urine. All drivers
operating a vehicle in Kentucky impliedly consent to submit to these
tests. The officer should thereafter read you an implied consent
form, which essentially states that that you have 20 minutes or less
to contact an attorney for legal advice and that he will permit you
to obtain an independent blood test (at your expense) if and only if
you cooperate and submit to the requested blood, breath or urine
tests. Should you decide to refuse to take the test, Kentucky law
will presume guilt and increase the penalties levied against you
should you later decide to plead guilty or if a jury finds you
guilty. Remember, do not volunteer any information to anybody except
for your attorney. Some Kentucky jailers record all conversations
inside the detention centers and on the telephone. Any statements you
make against your interest may be used against you at a trial of the
matter.

The United States Court in Miranda
v. Arizona, 384 U.S. 436 (1966) held that statements made by a defendant during
interrogation and while in police custody are admissible at trial
only if the police had previously informed the defendant of his right
to counsel with an attorney before and during questioning and of the
right against self-incrimination before questioning by the police.
The prosecutor could thereafter use at trial any voluntary statements
made by the defendant. The Miranda court based its decision
on the Fifth Amendment right to counsel and the right to remain
silent.

The costs of a DUI are increasing. Everybody knows that a DUI charge and conviction can devastate most people financially. MSN Money reports that a typical first time DUI costs around $10,000 after court costs, fees, towing, and increases in insurance, assuming there was no collision at the time of the DUI stop.

So How Did They Arrive at This Figure?

Bail. In order to be released after arrest and after the sobering up, the offender should plan on paying between $150 to $2500 for bail. Note that in Kentucky, after an interview by pretrial services, the offender could be released on their own recognizance or find themselves paying up to $2500 for bail, assuming there were no additional charges besides the DUI.

Insurance. As attorneys and DUI offenders know, a DUI stop can drastically affect the price of auto insurance. Some insurance companies will drop offenders upon learning of the charge – even before a conviction. Yet others will place the convicted offender in the high-risk category and increase their premiums. MSN Money estimates the insurance cost to be $4,500 or more on a national basis. It could take between three to eight years of “clean” driving for premiums to go back to a preferred status. In Kentucky, this attorney is aware of at least one insurance company which does not raise rates for a DUI-1st conviction.

Fines. For a DUI 1 st conviction, the fines and court costs will vary, ranging between $600 to $1,200. In Kentucky, based on the county, the fines and court costs for a DUI 1 st conviction are $718.00.

Alcohol Education and Treatment. Upon conviction, states require alcohol assessment and attendance at an education or treatment program. The costs vary. MSN estimates the costs to range from $150 to $2000.

Legal Fees. Then there are the legal fees to consider. MSN Money reports attorney fees ranging from $250.00 to enter a guilty plea, up to $25,000 for a complex and rigorous defense. Note that this does not include investigators to review witness and any other case related expenses.

Detention Center / Jail Fees. In Kentucky, plan on spending additional money for booking fees. Additionally, some Kentucky jails charge a per day fee. If you are lucky enought to be granted home incarceration to serve your time, then plan for additional monitoring fees.

Ignition Locks. In some states, a court may order the installation of an ignition lock to prevent convicted offenders from driving if intoxicated. According to MSN Money, these costs can cost between $75 to $1290 / month, plus an installation fee.

License Reinstatement Fee. According to MSN Money, this fee averages $75.00. In Kentucky, this fee is $40.00.

Blood Testing. In Kentucky, prior to providing evidence for the state in the form of your blood, breath or urine, you have the option of selecting to later have a blood test, which must be paid for at the time of the test. The test costs around $400.

Towing. If the officer choses to have your vehicle towed, it could cost the offender between $100 to $1,200 to reclaim their vehicle. Apparently Chicago charges $1,200 to tow the vehicle.

Intangible Expenses. Then there are the intangible expenses to consider:

The Austin DWI Lawyer featured an article by Attorney Jamie Spenser entitled Watch The Witness, which described how officers use cheat sheets to answer defense lawyer's testimony in the courtroom.

The Underdog Blog featured an article by Attorney Jon Katz discussed the many reasons unrelated to alcohol which can affect a suspect's performance on field sobriety tests. He discusses the junk science used to support the Field Sobriety Tests (FST's) and the fact that the tests only show the presence of alcohol in one's body and not the level of alcohol present. He further discusses that too many judges rely on the FST's to find probable cause to arrest a suspect, request a breath or blood alcohol test, and to enter a guilty verdict for driving while impaired or driving under the influence of alcohol.

Washington State DUI Blog posted an article about how police in Washington conduct the Finger to Nose field sobriety test. The post notes that most sober individuals cannot perform this test, so it is not a valid indicator of sobriety. Note, in Kentucky, Field sobriety tests are voluntary. They are primarily used to gather evidence of impairment.

Guy Sharpe reported on the Georgia DUI Blog a Canadian study which suggests that birth control pills produce an enzyme that most Breathalyzer test machines will interpret as blood alcohol content, leading to the overestimation of true breath alcohol and erroneous test results.

In Kentucky, there are six (6) aggravating factors which will cause the penalties for a DUI to double and makes mandatory the minimum jail sentence at each DUI level. The aggravating factors are as follows:

Operating a motor vehicle and:

Going 30 miles per hour above posted speed limit

Traveling in the wrong direction on a limited access highway

Causing an accident resulting in death or serious injury

having a blood or breath alcohol content of 0.15 or higher as measured within two hours of cessation of the operation of the motor vehicle

refusing to submit to any test or tests of one's blood, breath, or urine as requested by an officer

transporting a passenger under 12 years of age.

Kentucky statutes also do not allow the reduction of the penalties when an aggravating circumstance is present.

Note though that first offenders with no aggravating factors serve no mandatory jail time.

In Kentucky, the punishment for a person 21 or over convicted of a First Offense DUI within a 5 year period include:

Penalties - $200 to $500 fine and/or 48 hours to 30 days jail. Community labor of 48 hours to 30 days may be substituted for fine or jail. If an aggravating circumstance is present at commission of offense, there is a mandatory minimum of four (4) days imprisonment.

Costs and Fees - Court Costs, DUI Service Fee, Treatment Program Fee, County Fees, State Fees.

Alcohol or Substance Abuse Treatment Program - 90 days.

License Revoked - 30-120 days (or if Defendant is under 18, until Defendant reaches age 18, whichever is longer). May apply for hardship license after minimum suspension period expires.

Aggravating Circumstances referred to above include:

Operating motor vehicle (MV) in excess of 30 miles per hour above the speed limit;

Operating MV in wrong direction on limited access highway;

Operating MV that causes accident resulting in death or serious physical injury;

Operating MV while alcohol concentration in operator’s blood or breath is 0.15 or more as measured by test(s) of a sample of the operator’s blood or breath taken within 2 hours of cessation of operation of MV;

Refusing to submit to any test(s) [blood, breath, or urine] requested by officer having reasonable grounds to believe person was operating or in physical control of a MV in violation of KRS 189A.010(1); and

BE SEEN, BE HEARD!

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